Navigating Multi-Agency NEPA Processes to Advance Multimodal Transportation Projects (2016)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

8C H A P T E R 2 Five potential challenges that agencies face when navigating NEPA processes that involve more than one U.S. DOT agency were identified during Phase 1 of the research based on the research team’s project experience, review of relevant literature, and interviews with select U.S. DOT staff. The research team then convened a small focus group to review and refine the ini- tial list of challenges. The focus group consisted of experienced practitioners from state DOTs, transit agencies, an airports authority, and consulting firms, plus a former FHWA envi- ronmental specialist. The five challenges, as refined with focus group input, are described in this section. The case studies conducted for this research offer examples of the challenges presented in this section as well as successful strategies for addressing them. A summary of the key findings of the case studies by challenge is presented in Chapter 4. Challenge 1: Unique Agency-Specific Program Requirements Under the NEPA Umbrella The term “NEPA umbrella,” as depicted in Figure 3, is used to explain how the NEPA process provides a framework within which U.S. DOT agencies address multiple related fed- eral laws and executive orders. It is within the NEPA process, for example, that requirements of the Clean Air Act and the Executive Order on Environmental Justice are addressed. Fed- eral requirements related to parklands and cultural resources are addressed as part of the NEPA process. Other laws that are addressed as part of the NEPA process include the Endangered Species Act and the National Historic Preservation Act. Bring- ing these various requirements under the NEPA umbrella gen- erally helps streamline the overall process, although it also adds complexity and leads to extensive coordination and collabora- tion with non-U.S. DOT entities. Individual U.S. DOT agencies have built on the concept of a NEPA umbrella by integrating their own unique program requirements with the NEPA process. FTA, for example, has integrated the New Starts process, with its unique approval steps and criteria, with the NEPA process. Similarly, FRA and FAA have tended to overlay their program-specific safety requirements onto the NEPA process. Project sponsors that are accustomed to following one U.S. DOT agency’s NEPA process can be challenged by the need to combine processes and meet unfamiliar requirements. The focus group noted that for multimodal projects, the responsi- bility for reconciling the requirements from different agencies and crafting a composite process largely falls on the project sponsor(s). Challenge 2: Differing Agency Interpretations of NEPA Requirements Each U.S. DOT modal administration maintains distinct NEPA procedures which reflect their respective interpretations of NEPA requirements. To some degree these interpretations stem from differences in legislation, NEPA litigation history, internal organization, and agency culture. Project sponsors must understand the differences between each agency’s NEPA approach to navigate their individual requirements and expec- tations. Creating a single process that meets the legal and pro- cedural requirements of all parties can require significant effort, which is easily underestimated by project sponsors. Although FHWA and FTA have joint NEPA regulations (23 CFR 771, “Environmental Impact and Related Procedures”), they tend to apply their processes differently. Certain para- graphs in the joint regulations apply only to FHWA projects, while others apply only to FTA projects. The joint regulations Challenges of Multimodal NEPA Processes

9 have separate sections on public involvement, reflecting the different approaches taken by each. There are also separate lists of situations that qualify for a CE. Triggers for NEPA Review All U.S. DOT agencies conduct a NEPA review of projects before granting federal funding. NEPA can also be triggered by other major federal actions, such as approval to access the Interstate right-of-way, change an airport master plan, or allow a project to be constructed on federal land. FTA and FHWA differ in the extent to which they delegate authority to project sponsors. FHWA tends to rely heavily on state DOTs to prepare NEPA documents (with FHWA oversight and legal accountability for the NEPA process), recognizing that state DOTs have been developing compliant documents for more than 40 years. FTA, on the other hand, tends to take a more hands-on role in the NEPA process. For example, FTA does not typically delegate historic preservation or tribal liaison processes to a transit agency, whereas FHWA does delegate this responsibility to a state DOT. SAFETEA-LU codified and expanded FHWA’s delegation authority, allowing the agency to delegate its complete NEPA role to state DOTs, including authority to sign NEPA docu- mentation. Only California has completed the steps necessary to take advantage of this provision. For multimodal projects in California, the California Department of Transportation (Caltrans) found itself with the ability to act under the FHWA delegation, while it worked directly with the other federal agencies on multimodal projects. As a result, FHWA was not involved in reconciling the differences among agencies because it had delegated its role to Caltrans. Further examples of differing interpretations include: • Level of evaluation and documentation required for a specific action. Each U.S. DOT agency has distinct criteria for determining the significance of impacts and whether a CE, EA, or EIS is required. FAA and FRA tend to grant CEs in fewer circumstances and have a lower threshold for trig- gering an EIS than do FHWA and FTA. • Analysis required under NEPA-related environmental requirements. Each agency may employ different stan- dards for evaluating a project under NEPA-related require- ments such as the Clean Air Act, the Clean Water Act, and Section 4(f). Agencies may apply different standards for the outline of a NEPA document and have different expectations for the level of detail. These differences in standards may in some cases be due to different legal and regulatory require- ments. Under the Clean Air Act, for example, FHWA- and FTA-funded projects are subject to one set of conformity requirements, while FRA and FAA projects are subject to a different set of requirements. • Planning and NEPA linkages. Agencies have differing expectations within the planning and project development continuum, and differing conditions under which decisions reached in the planning phase can be carried into NEPA. Understanding the different requirements and expectations among U.S. DOT agencies can be complicated by changes in laws, regulations, and policies. There can be a considerable lag between the enactment of new legislation and the issuance of implementing rules and guidance. Sponsors can be challenged when laws, regulations, or policies change over the course of a project, particularly when there are joint lead agencies and the requirements change for just one of them. Challenge 3: Anticipating Which Agencies Will Have a Major Federal Action An important first step in the NEPA process is determining which federal agency will have a major action. While this can be straightforward on certain projects, a lack of clarity in project scope and funding for multimodal projects can make it difficult to know in advance which U.S. DOT agency(ies) will have a major federal action and/or which agency should serve in a lead or cooperating role. When more than one agency is expected to take action on a project, there is a need to establish the appropriate roles of each in the NEPA process, including which will serve as lead and cooperating. The lead agency is responsible for the environmental analysis and documentation. Cooperating Figure 3. NEPA umbrella.

10 agencies support the lead agency in the NEPA process by par- ticipating in the scoping process, preparing information and environmental analyses for portions of the project for which the agency has special expertise, and providing staff support at the lead agency’s request. The process to designate the lead federal agency(ies) tends to be project- and agency-specific. U.S. DOT agencies may be more willing or less willing to serve depending on a variety of factors. Even when the respective roles of the federal agen- cies are generally agreed upon, there are no readily available templates or examples of a memorandum of understanding (MOU). An MOU developed for a specific project may have ambiguities or miss elements that are not anticipated. Challenge 4: Efficient Coordination among Agencies By their very nature, multimodal projects involve more than one U.S. DOT agency and, as such, typically require more coordination than is needed for a project involving only one. When identifying the coordination mechanisms to be used in a particular situation, sponsors need to recognize the differing objectives, interests, and priorities of the agencies involved. Each U.S. DOT agency tends to be focused on its own mis- sion, legal mandates, and policies. Project priorities may differ and, given limited staff resources, a different pace of work may result in schedule and process conflicts. It can be difficult to maintain momentum over the course of a lengthy NEPA pro- cess involving multiple agencies with different—and some- times competing and changing—requirements and interests. Up-front agreement on roles and coordination mechanisms, and perhaps on dispute resolution procedures, can help ensure that each agency’s involvement is efficient, timely, and con- sistent with its defined responsibilities. Challenge 5: Securing Funding for Multimodal NEPA Studies Funding to complete multimodal NEPA processes can be difficult to secure, particularly when funds are being sought from multiple sources. The research team hypothesized that difficulties encountered in securing funding from multiple sources could delay the NEPA process. Multimodal projects that receive funding from multiple federal sources may not fall neatly under the requirements of a single program. While a multimodal project may provide more opportunities to receive funding from new and/or multiple sources, preparing multiple applications can be time-consuming and the out- come can be uncertain. Legal restrictions on the use of cer- tain funds also come into play. Funds whose use is restricted (e.g., gasoline tax revenues or bond proceeds whose use is strictly proscribed) can complicate the task of assembling and administering the funds needed to complete a multimodal NEPA process.